Tag: Automobile Safety

In March 2018, an Uber fatally struck Elaine Herzberg.[1] This accident was extraordinary because the driver was not operating the vehicle at the time of the crash; it was in autonomous mode.[2] This tragedy raises many questions about the future of cars without drivers. For now, Uber has removed self-driving vehicles from the roads.[3] But as we look to the future of cars without a driver, we must ask: what is the insurance liability when a crash occurs?

Every 5 seconds there is an automobile accident and ninety-four percent are caused by human error.[4] Auto accidents can cause property damage that is costly to repair, and bodily injury, which generates medical bills.[5] Auto insurance covers the cost of property damage and bodily injury and is mandated in forty-nine states.[6] Highly automated vehicles (HAV) are designed to eliminate drivers and rely on an automation system, subsequently reducing human errors and the number of auto accidents.[7] Yet, it is unclear if insurance will cover the cost of damages or if the manufacturer will be held liable when a highly automated vehicle is involved in an accident. Legal liability is one of the biggest obstacles to widespread utilization of HAV technology.[8]Continue reading “Automobile Accidents Without a Driver?: The Insurance Liability of Highly Automated Vehicles”

Despite its reemergence in the last five years, the concept of autonomous vehicles existed as early as the 1920s.[1] While the early concept largely focused on speed and collision prevention systems provided by automated highway systems, or “smart roads,”[2] the advent of computers and artificial intelligence has shifted the focus from “smart roads” to “smart cars.”[3] This shift has led to the continued development of vision-based systems of vehicle guidance.[4] By 2007, all entrants in the United States Defense Advanced Research Projects Administration (DARPA) competition were successful in operating their autonomous vehicles in an urban setting that mimicked a city environment.[5] As technology becomes more sophisticated, more automobile manufacturers and leading tech companies, such as Google and Apple, are cooperating to develop autonomous vehicles.[6]

As the number of autonomous vehicles on the road increases, ­a new genre of tort law is introduced: determining and balancing liability between drivers and manufacturers in autonomous vehicle accidents.[7] While the general public expects autonomous vehicles to offer safer, hands-free driving experiences and to completely replace human interaction with motor vehicles, the need for consumer—or driver— education or behind-the-wheel training still exists.[8]

Section II provides an overview of negligence and strict liability under products liability law, as well as an overview of the types of automobile defects relevant to the analysis. For the sake of this Note, breach of warranty will not be addressed. Section III discusses recent developments of autonomous vehicle news and different state laws regulating autonomous vehicles. Section IV recommends increased federal regulation for autonomous vehicles and heightened standards for vehicle manufacturers and drivers alike.

II. Background

A. Introduction to Products Liability

1. Negligence

Negligence is generally defined as “the failure to exercise reasonable care” under the circumstances.[9] There are five elements required to establish a prima facie case for negligence: duty, breach of duty, “but-for” causation, proximate causation, and physical harm.[10]

Duty provides a maximum threshold to which people may be held accountable for their actions that cause harm to others.[11] Without duty, one cannot be found liable for negligence.[12] Breach of duty is often described as an “act or omission” that unreasonably affects the rights of others.[13] While breach of duty implies a standard of reasonable care that people ought to follow to prevent undue harm to others,[14] the standard varies in different situations.[15]

The third and fourth elements of negligence are “but-for” and proximate causation.[16] A causal relationship—both “but-for” and proximate—between a defendant’s breach of duty and the plaintiff’s harm must be established for liability to attach.[17] “But-for” causation asks whether harm to the plaintiff would have happened were it not for defendant’s negligence,[18] while proximate causation relates to the closeness or remoteness of the defendant’s breach of duty to the plaintiff’s harm.[19] The more remote a defendant’s action from a plaintiff’s harm, the less likely a court will find the defendant’s action a proximate cause of the plaintiff’s harm.[20] The last element of negligence is actual harm.[21] Without actual harm, no liability can be assigned to the defendant.[22]

2. Strict Liability

The doctrine of strict liability “[e]nsure[s] that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”[23] Strict liability attaches to a seller of defective or unreasonably dangerous products if the product causes harm to the user or consumer, or to his property, and if (a) the seller is engaged in the business of selling such a product, and (b) the product is expected to and does reach the consumer without substantial change in its condition.[24] Although state courts apply different interpretations for the scope of strict liability,[25] almost all states have adopted the language of Section 402A of the Restatement in their rules.[26]

B. Types of Defects in Automobile Vehicles

1. Manufacture Defects

A manufacturing defect is a mistake in the process of building a product that would be safe if it were built as designed.[27] A manufacturer may be held strictly liable for dangerous manufacturing defects, even if it has exercised “all possible care” in manufacturing the product.[28] A plaintiff must establish that “the product does not conform to the specifications, regardless of whether there was negligence in the manufacturing process” to prevail in a products liability litigation.[29] However, some courts hesitate to attach strict liability to software under the manufacturing defect doctrine.[30]

Another method available to consumers is the malfunction doctrine, a variation of the manufacturing defect doctrine.[31] The malfunction doctrine allows a plaintiff to show a manufacturing defect by inferring product defect from “circumstantial evidence that (1) the product malfunctioned, (2) the malfunction occurred during proper use, and (3) the product had not been altered or misused in a manner that probably caused the malfunction.”[32]

2. Design Defects

A design defect is a defect in intended product design that makes a product harmful or dangerous.[33] Many states assign strict liability to manufacturers for manufacturing design defects.[34] The State of California uses two tests—the consumer expectation test and the risk/benefit test—to establish design defects­­[35] and to hold sellers and manufacturers strictly liable.[36] Under the consumer expectation test, a plaintiff must prove that a defendant’s defective product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way, and that the product’s failure to perform safely was a substantial factor in causing the plaintiff’s harm.[37] As for the risk/benefit test, strict liability attaches to a manufacturer when two conditions are satisfied: (1) the manufacturer’s product design was a substantial factor in causing harm to the plaintiff and (2) the manufacturer fails to prove that the benefits of the product’s challenged design outweigh the risks of such design.[38]

3. Failure to Warn

Manufactures may be held liable for injuries that are attributable to the relevant risks of their products.[39] They are required to disclose and warn consumers of the foreseeable risks of using their products, and they can be liable for any injury or damage attributable to the lack of information disclosed.[40] In California, for example, failure to warn (or inadequate warning) is a sufficient ground to hold manufacturers and sellers strictly liable.[41] In order to minimize potential liability stemming from failure to warn, manufacturers err on the safe side by providing copious disclaimers and warnings.[42]

For example, Tesla’s new autonomous vehicle technology manual may have a disclaimer asking drivers to pay close attention to the traffic when using its autonomous vehicle technology. Without a disclaimer warning drivers to pay close attention to the traffic while using the autonomous technology, Tesla could be held liable for any accident that may be attributable to this lack of disclaimer.[43] In addition to providing adequate warning at the time of sale, manufacturers have post-sale responsibilities to provide warnings for newly discovered facts pertinent to the safety of their products.[44] Although this post-sale responsibility is widely recognized by manufacturers, the “common law legal framework for addressing liability when manufacturers fail to do so is less well established.”[45]

III. Analysis

A. State Regulations for Autonomous Vehicle Drivers

As autonomous vehicle technology becomes more available to the public, a new standard may be required for drivers that utilize this technology. Negligence is based on a standard that asks what a reasonably prudent person would do in a given, particular situation.[46] In light of the perceived benefit of autonomous vehicle technology, however, the reasonable driver standard may shift, placing a higher burden on the vehicle and software manufacturers.

Basic reasonableness standards for autonomous vehicle drivers can be found in different state statutes. For example, Nevada statute Sections 482A.070, outlining requirements for a human operator for highway testing of an autonomous vehicle,[47] and 482A.080, outlining equipment requirements for autonomous vehicles,[48] provide a basic requirement for autonomous vehicle drivers. California, Florida, and the District of Columbia outline similar requirements for drivers and autonomous vehicles.[49]

These statutes generally include the following requirements: First, drivers must be seated in a position to allow them to immediately take control of the vehicle, i.e., being able to access the means to engage or disengage the technology. Second, drivers must be able to safely monitor the autonomous vehicle operation. Monitoring vehicle operation consists of monitoring the dashboard and hearing or seeing an alert indicating a failure of the autonomous system, or any other malfunction affecting the autonomous vehicle technology. Third, drivers must be capable of taking control of the vehicle when necessary. This requires that drivers not be in various physical or mental states—falling asleep behind the wheel or driving under the influence—that renders them incapable of manually driving the vehicle legally.

In Nevada, autonomous vehicles are required to provide a visual indication to its drivers when the autonomous technology has been engaged/disengaged, and be equipped with a means to alert the driver that the autonomous technology is unable to operate the vehicle safely.[50] Moreover, Nevada statute requires that a driver of an autonomous vehicle be actively engaged while driving.[51] For autonomous vehicle equipment and functionality, California, Nevada, Michigan, and the District of Columbia all require the vehicles to meet federal standards and regulations for motor vehicles and comply with applicable state traffic and motor vehicle laws.[52] Furthermore, they require the vehicles to have safety mechanisms for engaging/disengaging the technology, visual indicators inside the vehicle that show when the vehicle is in autonomous mode, and a means of alerting the operator of a technology failure.[53]

2. Data Collecting and Reporting Requirements

One noticeable discrepancy between the aforementioned states is the requirement of reporting all disengagements of autonomous mode, near misses, and crashes.[54] While California requires manufacturers to collect and report data related to accidents[55] or disengagement from autonomous mode by the test driver resulting from a failure of the autonomous technology,[56] Nevada only requires manufacturers to report accidents or traffic violations occurring during autonomous vehicle testing.[57] Neither Florida nor the District of Columbia, on the other hand, has data collecting and reporting requirements for autonomous vehicle testing or operation.

3. Manufacturers’ Liability and Its Scope

For manufacturers, Nevada limits a manufacturer’s liability to accidents or injuries caused by defects that were present in the vehicle as originally manufactured.[58] It thus shields manufacturers from potential liabilities from accidents or injuries caused by defects originating from any conversion or installation necessary to convert a regular vehicle into an autonomous vehicle.[59] Michigan and the District of Columbia followed suit with Nevada’s approach.[60] This approach to manufacturers’ liability seems fair and reasonable, and it closely follows the Restatement’s approach that if there were substantial changes in a product’s original condition, the manufacturer of the product would not be held liable.[61]

However, some jurisdictions have adopted a different approach.[62] In 1996, an Illinois court wrote that “[w]here an unreasonably dangerous condition is caused by a modification to the product after it leaves the manufacturer’s control, the manufacturer is not liable unless the modification was reasonably foreseeable.”[63] The “reasonably foreseeable” approach broadens the scope of potential liability of the automobile manufacturers because they could be held liable for damages or injuries caused by third-party modifications if these modifications were reasonably foreseeable to the manufacturer.[64] On the other hand, California code does not even mention manufacturers’ liability, failing to address and balance liabilities between vehicle manufacturers and third­ parties that make modifications to manufactured vehicles.[65]

C. Determining a Standard for Manufacturers Liability

Further development and public use of autonomous vehicle technology may challenge the adequacy of current product liability law. It has been suggested that the advent of autonomous vehicles will result in an imbalance of liability between autonomous vehicle manufacturers and consumers.[66] After a much-publicized fatal accident that involved a driver with his Tesla Model S electric sedan in autonomous driving mode, federal regulators opened a formal investigation into the accident.[67] Although Tesla, with possible recall of its vehicles looming (depending on U.S. National Highway Traffic Safety Administration (NHTSA) findings), escaped from the aforementioned accident unscathed, the accident nevertheless highlighted the need for manufacturers to eliminate any software and/or hardware defects and to provide all required information to drivers and vehicle owners.[68]

The Restatement (Third) of Torts recognized that the seller’s duty to warn of product-related defects after the point of sale is “often daunting.”[69] Continued technological developments, such as on-board sensors and driver assistance systems—adaptive cruise control, automated emergency braking, and pedestrian detection[70]—make automakers more vulnerable to negligence and strict liability.[71] This increase in liability, so-called “proximity-driven liability,” resulting from increased proximity between drivers and automobiles, may run against the spirit of the doctrine of strict liability, which is to safeguard the general public from defective products by increasing liability of the manufacturer—the only party able to rectify the defect and prevent public loss.[72]

The purpose of autonomous vehicle technology is to make the vehicle safe for consumers.[73] Knowing that software is never perfect, however, it is unfair to place a higher burden of liability on manufacturers that aim to make driving easier and safer for the general public. Barring specific instances in which software failure or malfunction is the sole cause of an accident, autonomous vehicle operators should also shoulder the responsibility of being safe operators. Nevertheless, vehicle manufacturers should shoulder any liability stemming from defects of its hardware and/or software, regardless of whether it was negligent.

IV. Recommendation

A. Standards for Manufacturers and Drivers

Courts have generally refused to apply the doctrine of strict liability to software failures because of the notion that software cannot be perfect and error-free.[74] While understandable, strict liability should be applied to lessen the burden borne by the public—the burden of potential dangers and both the economic and social costs associated with automotive accidents.

Manufacturers and developers are in a far better position to prevent and mitigate software failures or defects. Furthermore, increasingly sophisticated marketing of autonomous vehicles and the autonomous vehicle technology makes it more difficult for the consumers to see the risk behind the technology.[75] Moreover, complicated chains of supply of parts and distribution of autonomous vehicles make it that much more difficult for consumers to pinpoint the origin of the defect in a manufacturer’s product.[76] Some autonomous vehicle manufacturers such as Google and Mercedes-Benz have indicated that they will take full responsibility of any accidents caused by failures of their autonomous vehicle software.[77]

Moreover, courts should apply the objective reasonable-person standard to autonomous vehicle software, which should consider the following, non-exhaustive factors in determining whether a software was defective: (1) total utility, or benefit, to the drivers and others, (2) total amount of risk, or harm, to the driver and others, (3) the likelihood of the risk actually causing harm to others, and (4) any existing, reasonable alternatives of lesser risk and the costs of those alternatives.[78] This standard should allow courts to determine whether the software made a reasonable—as opposed to correct—decision, eliminating potential ethical dilemmas from the liability calculus. [79] Although the reasonable-person standard lacks certainty,[80] courts, nevertheless, have been successfully applying it to many tort cases, and thus should be able to determine whether autonomous vehicle software has acted reasonably according to the standard.

As autonomous vehicle technology becomes more advanced and ready for public use, autonomous vehicle drivers may become less responsible on the road, creating a potential imbalance of liability between manufacturers and consumers.[81] Courts should apply a higher standard to autonomous vehicle drivers involved in an automobile accident while using autonomous vehicle technology. This will require the courts to determine whether drivers of autonomous vehicles were driving, or monitoring their autonomous vehicles in a reasonable way. Despite possible concerns about uncertainty and the unpredictable nature of the reasonable-person standard, its application would not be difficult for the courts since they have been more than capable of determining whether one has acted reasonably or not in a given situation.

B. Federal Regulation for Autonomous Vehicle Technology

Congress should enact a law regulating autonomous vehicle operations, especially to require sensors and software functionality, including parameters that govern and influence autonomous vehicle software’s decision making. The United States Department of Transportation (USDOT) already has extensive safety standards and regulations provided by NHTSA for regular vehicles.[82] As evidenced in numerous state laws, bills, and regulations on autonomous vehicles, regulations and requirements for the operation of autonomous vehicles are scant and general at best.[83] On the other hand, for aircrafts, the Code of Federal Regulations (CFR) and the Federal Aviation Administration (FAA) have extensive requirements and regulations for flight guidance systems.[84]

An example of a possible federal regulation on autonomous vehicles may be monitoring and recording autonomous vehicle and driver activities for a specified time period before an accident. The recorded vehicle and driver activities would greatly help courts determine whether the driver was monitoring his or her autonomous vehicle operation in a reasonable manner. Furthermore, the government should regulate technical parameters such as sensor sensitivity, radar range, and software processing speed, and delineate what constitutes a substantial change, or material modification, to autonomous vehicles and autonomous vehicle software. Unified quality standards for autonomous vehicle parts and sensors would provide clarity and information to consumers and greater control and guidance on autonomous vehicle performance, safety, installation, modification, and testing standards.

V. Conclusion

Autonomous vehicle technology is no longer a product of science fiction. Google’s self-driving vehicles have driven over two million miles so far,[85] and many Tesla drivers are already taking advantage of Tesla’s autonomous vehicle software.[86] However, the technology is far from perfect, and there are scenarios that are beyond technology’s current capabilities to handle.[87] In order to protect the public from accidents caused by autonomous vehicle software defects or malfunctions, standards for autonomous vehicle manufacturers should be heightened. Likewise, in order to protect the public from accidents caused by negligent drivers using this technology, reasonableness standards for these drivers should likewise be heightened.[88]

In addition, a federal department such as the Department of Transportation, or an agency such as NHTSA, should regulate autonomous vehicle operation, including sensor and radar operations, software controls and parameters, vehicle inspection guidelines for manufacturers and third parties, and operation manuals for autonomous vehicle drivers. Centralized federal regulation would provide concrete guidelines not only for the states but also for the vehicle manufacturers and the public alike. The technology is already vastly ahead of the regulation, and there is some serious work to do for our state and federal legislatures.

* Juris Doctor, University of Illinois College of Law, 2017. Thanks to the editors and staff of the Journal of Law, Technology & Policy for their efforts. I would also like to thank my wife, Catherine, for her continuous support. This work would not have been possible without her. Finally, many thanks are owed to my parents, family, and friends for their unwavering support.

[15] While adults are held to a reasonable person standard, children and disabled people are held to a standard of reasonableness for a person with similar characteristics. Restatement (Third) of Torts § 10 (2010); see also Stevens v. Veenstra, 573 N.W.2d 341 (Mich. Ct. App. 1997) (holding that a fourteen-year-old driver education student is not held to a reasonable person standard for adults, but instead to a standard reasonable for fellow fourteen-year-olds). However, people with greater levels of skills, such as doctors and other medical professionals, are required to exercise a greater amount of care they reasonably possess. See Helling v. Carey, 519 P.2d 981, 983 (Wash. 1974) (finding that defendant was negligent in failing to conduct a simple pressure test that other optometrists would reasonably have done).

[35] Barker v. Lull Eng’g Co., 573 P.2d 443, 457–58 (Cal. 1978). The California Supreme Court in Barker set out two tests to establish defect in the product design: the consumer expectation test and the risk/benefit test. Id. For the consumer expectation test, a plaintiff must prove that the defendant’s defective product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way, and that the product’s failure to perform safely was a substantial factor in causing plaintiff’s harm. Id. The consumer expectation test is reserved for cases where plaintiff’s everyday experience permits a conclusion that the product design is defective and not safe. Pruitt v. General Motors Corp. 72 Cal. App. 4th 1480, 1484 (1999). For the risk/benefit test, the plaintiff has to prove that the defendant’s product design was a substantial factor in causing harm to the plaintiff, and the defendant must fail to prove that the benefits of the product’s challenged design outweigh the risks of the design. Barker, 573 P.2d at 457–58.

[41] In Livingston v. Marie Callenders, Inc., the court found Marie Callenders liable to a plaintiff who suffered an allergic reaction to a Marie Callenders product on a strict liability failure to warn theory. 72 Cal. App. 4th 830 (1999). The product contained an ingredient (MSG) to which a substantial number of the population is allergic. Id. at 832–33. Also, the ingredient was one whose danger was not generally known, or if known was one which the consumer would reasonably not expect to find in the product, and where the defendant knew, or by the application of reasonable developed human skill and foresight should have known, of the presence of the ingredient and the danger. Id.

[43] A product is defective because of inadequate warnings if the foreseeable risks of harm posed by the product could have been reduced by reasonable warnings by the seller or other distributor, and the lack of warnings renders the product not reasonably safe. Restatement (Third) of Torts: Prod. Liab. § 2(c) (1998).

[44]Id. § 10. The Supreme Court of Michigan ruled in Comstock v. General Motors Corp. that a manufacturer of an automobile (GM), the brakes of which were defective, had a duty to warn of the vehicle’s inherent danger, not only at the time of sale but any time shortly after the product entered the stream of commerce if a defect became known to the manufacturer and if a failure to give prompt warning of the known, latent defect imperiled life and limb. 99 N.W.2d 627, 636 (Mich. 1959). In Hasson v. Ford Motor Co., the Supreme Court of California stated in its dicta that the manufacturer was negligent in failing to take into account (in designing its braking systems and advising on their maintenance) foreseeable brake abuse by drivers resulting in overheating of brakes. 564 P.2d 857, 870 (Cal. 1977).

[51]Id. § 482A.070. Autonomous vehicle drivers are required to be (a) seated in a position so that he can take immediate control of his vehicle, (b) able to monitor safe operation of the vehicle, and (c) capable of taking control over the autonomous vehicle in case of emergency.

[60] “A manufacturer of automated technology is immune from civil liability for damages that arise out of any modification made by another person to a motor vehicle or an automated motor vehicle, or to any automated technology . . . .” Mich. Admin. Code r. 257.817 (2013). “The original manufacturer of a vehicle converted by a third party into an autonomous vehicle shall not be liable in any action resulting from a vehicle defect caused by the conversion of the vehicle, or by equipment installed by the converter, unless the alleged defect was present in the vehicle as originally manufactured.” D.C. Code §50-2353 (2013).

[61] “One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” Restatement (Second) of Torts § 402A(1) (1965) (emphasis added). However, a question remains: what constitutes a substantial change? The Restatement leaves that question to the courts to decide. See id. § 402A(1) cmt. p (commenting on varying degree of changes that can be made to a product without shifting the liability from the seller or manufacturer of the product to the party that made the changes).

[63] Davis v. Pak-Mor Mfg. Co. 672 N.E.2d 771, 775 (Ill. Ct. App. 1996); see also Woods v. Graham Eng’g Corp., 539 N.E.2d 316, 318 (Ill. Ct. App. 1989) (ruling that when a change or modification by a third party is foreseeable, liability will still be imposed on the original manufacturer); Hoyt v. Wood/Chuck Chipper Corp., 651 So.2d 1344, 1351 (La. Ct. App. 1995) (holding engine manufacturer not liable since it could not have anticipated plaintiff’s material alteration of the power unit).

[64]See Lavoie v. Power Auto, Inc., 312 P.3d 601, 608 (Or. Ct. App. 2013) (holding that changing a floor mat of a vehicle was a reasonably foreseeable modification/alteration that was a substantial contributing factor to the personal injury). So in some states, automobile manufacturers will have to consider changing floor mats as one of the foreseeable “substantial” modifications that can cause automobile accidents.

[78] The factors closely mimic that of the reasonable-person standard that reflects a cost-benefit approach supported by principles of utility and efficiency. Owen, supra note 10, at 1677. It also resembles the “Hand Formula” that uses a risk-calculating approach of judging one’s decision making. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

[79] John Gardner, The Many Faces of the Reasonable Person, N.Y.U. Sch. L., at 7­–8, http://www.law.nyu.edu/sites/default/files/upload_documents/The%20Many%20Faces%20of%20the%20Reasonable%20Person.pdf.

We live in a world with “new age automobiles”—where technological advancements increasingly permeate every aspect of vehicles, from those that affect comfort to those that enhance safety. [1] No longer are such features found solely in high-end models; they are offered in those purchased by the average consumer.[2] To some, cutting-edge technology in vehicles is seen as a necessity: recent studies show that “connectivity”—such as dashboard features that provide owners with email access—is now a part of consumer expectations.[3] From 2014 to 2015, 37% of consumers said that they would be willing to switch car brands simply to achieve improved connectivity.[4] The push for connectivity while driving is not surprising.[5] Last year, American commuters spent an average of 42 hours stuck in traffic.[6] While other reports note that up to 20% of drivers have not used many of the technology features in their vehicles,[7] consumers continue to desire automotive technologies “that enhance the driving experience and safety.”[8] This means that more advancements in car technology, not fewer, are to be expected.[9]

Many technologies that consumers most desire are “built-in,” and serve a range of purposes.[10] Some are created with an eye toward luxury enjoyment of the vehicle, and even with a nod toward creativity or pure fun.[11] Other advancements are aimed at practicality and cost efficiency.[12] Finally, technological developments that are designed to improve safety are wide-ranging.”[13] Consider “Forward Emergency Braking”—a technology that will sense and stop for pedestrians located in front of a car.[14] Some car manufacturers have created “camera and sensor systems” that warn drivers when cars are “in the[ir] mirror’s blind spot.”[15] Autoliv, for example, has developed a technology for thermal imaging of the area surrounding a vehicle.[16] This system, like its military forebears, allows drivers to see further than their headlights to avoid tragic collisions with pedestrians or wildlife, which they may not otherwise be able to detect.[17]

This article discusses one type of technological advancement purportedly directed at improving safety—integrated hands-free texting.[18] Perhaps unsurprisingly, integrated hands-free technology elicits tricky issues, explored below. First, we investigate the problems associated with texting while driving, and how legislators and car manufacturers have responded. Second, we discuss what integrated hands-free technology is and how it works. Third, we examine whether it has any impact on safe driving. Finally, we analyze how legislators have viewed hands-free texting, and how future considerations could affect this area.

The Pervasive Problem of Distracted Driving and Proposed Solutions

Texting and driving, one of the main causes of what is referred to as “distracted driving,” has been labeled an “American epidemic.”[19] As many as 98% of drivers believe that “[t]exting while driving is dangerous.”[20] Most, however, do not practice what they preach:”[21] 74% of drivers admit to having texted while driving.[22] This has resulted in tragic outcomes: every day, distracted driving kills more than 8 people and injures about 1,161.[23] Some studies go so far as to suggest that distracted driving is worse than drunk driving.[24] The American public has reacted—in 2009, 80% of American adults favored banning texting while driving”[25]—and legislators have responded.[26] “46 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers,” and “[o]f the 4 states without an all driver texting ban[,] 2 prohibit text messaging by novice drivers[, and] 1 restricts school bus drivers from texting.””[27]

With consumers demanding greater connectivity in vehicles,[28] and the concurrent public and legislative outcry to the distracted driving craze,[29] car manufacturers are “racing to make driving less distracting.”[30] One way they have done this is by offering integrated hands-free technology,[31] which allows drivers to stay connected without taking their eyes off of the road or their hands off of the wheel.[32] We turn now to a discussion of how automotive companies have sought to meet this demand, and how exactly integrated hands-free technology works.

Integrated Hands-Free Technology Explained

This part explains what integrated hands-free technology in cars is. It then discusses different types of hands-free technology systems that consumers may encounter and how the average consumer uses them.

Generally, integrated hands-free technology is a system that is installed directly into a car.[33] It works by connecting with a driver’s phone using Bluetooth.[34] It can then tell whether the driver has an incoming call or message.[35] Through integrated hands-free technology, the driver could choose to answer a phone call or listen to a message.[36] Additionally, through the use of speech recognition technology, the driver could dictate a reply or choose another course of action.[37] The specifics of these types of systems, of course, may vary by car make and model.[38] We examine briefly the systems produced by some of the largest car manufacturers in the world.[39]

“SYNC” is Ford’s version of integrated hands-free technology.[40] By connecting her phone with the car’s infotainment system[41] via Bluetooth, a driver can use the software’s voice recognition system to make calls, dictate text messages, and search for music on her phone.[42] The software is compatible with both Apple CarPlay and Android Auto, allowing a driver to engage Siri or Google to make calls, send messages, navigate, and much more—all without reaching for her phone.[43]

Chevrolet’s “MyLink” similarly allows drivers to connect their phones to their car’s infotainment system through Bluetooth.[44] Hands-free calling is available in multiple models, allowing a driver to simply press a button on the steering wheel and state aloud the callee’s name.[45] Text Message Alerts notify a driver when he or she has received a new message, too.[46] Through this feature, a driver can listen to the message, view it when her car is stopped, and reply to it with stock messages.[47]

As a final example, “NissanConnect” also employs Bluetooth to link the driver’s phone to the car’s infotainment system, “keep[ing] [the driver] in touch while [she] stays focused on the road.”[48] Nissan likewise uses voice recognition technology, through which drivers can “make and answer calls and send pre-loaded text messages—hands free.”[49] Drivers may input into the system custom messages, increasing the finite list of stock messages at their disposal while driving.[50] Through the driver’s phone, the system can also access social media networks, including popular sites like Facebook and Twitter, and read aloud posts from those platforms.[51]

Nearly all of the major players in the automotive industry have developed a way for drivers to access and utilize their phones without actually touching them—by calling, texting, and even keeping up with Facebook posts.[52] The question remains whether integrated hands-free technology actually makes driving safer. We survey current research in the next part.

Hands-Free Texting and Driving As a Safer Alternative

Integrated hands-free technology is still relatively new, and more research on its safety implications may be warranted.[53] Current studies have found that texting hands-free is just as unsafe as doing so hands-on.[54] Some studies even show that the use of hands-free technology is more distracting than hands-on use.[55]

According to the Center for Disease Control and Prevention, there are three types of distraction that concern a driver: (1) visual distraction, which involves what a driver can see; (2) manual distraction, which is implicated when a driver takes her hands off of the wheel; and (3) cognitive distraction, which occurs when a driver is not completely focused on the task of driving.[56]

A driver that is looking at the road while on the phone may “fail to see up to 50 percent of the information in their driving environment” due to cognitive distraction.[57] A study conducted by the American Automobile Association’s Foundation for Traffic Safety investigated the use of hands-free technology while driving and determined “that potentially unsafe levels of mental distraction can last for as long as 27 seconds after completing a distracting task.”[58] A different study, conducted by the Texas A&M Transportation Institute,[59] compared the effects of both methods of texting—manually and hands-free—on driving.[60] The researchers concluded that there was no significant difference between the two methods: “Driver response times were significantly delayed no matter which texting method was used.”[61] The study also determined that drivers spent less time with their eyes on the road regardless of the method through which they composed text messages.[62]

Critics emphasize that this investigation focuses only on cognitive distraction, which is believed to be less dangerous than manual and visual distraction.[63] Nonetheless, an amplified cognitive load increases the risk of a crash due to slower reaction times and inattention blindness.[64] Additionally, research conducted by the Virginia Tech Transportation Institute[65] found that the use of hands-free devices “involved visual-manual tasks at least half of the time.”[66] Significantly, no research has been able to show that integrated hands-free devices improve safety.[67]

When the safety benefits of integrated hands-free technology were completely unknown, experts believed that it “w[ould] become standard within a few years.”[68] This prediction held true—hands-free communication technology has become “a central competitive focus of the automotive industry”[69]—despite a lack of demonstrated safety benefits.[70] Meanwhile, researchers have accumulated considerable evidence indicating that this technology poses significant risks.[71] The next section examines the cognitive dissonance between the existing research on hands-free texting and the law’s treatment of it.

A Mismatch Between Research and How Laws Treat Hands-Free Technology

All over the country, state legislators have noticed the distracted driving epidemic and have racked their brains to find ways that they believe will address the issue.[72] As discussed above, the vast majority of states have banned texting while driving.[73] Fourteen states have gone even further, banning any use of hand-held devices for all drivers.[74] The problem, however, lies in the fact that none of these laws address the concern with hands-free devices,[75] seeming to incorrectly presume that they are a safer alternative.[76] California, for example, explicitly condoned the use of hands-free devices for texting less than a year after issuing a text messaging ban.[77] While there have been calls for states to issue bans on the use of hands-free devices, no state has actually done so.[78]

The lack of a legislative response to research demonstrating the dangers of hands-free texting does not, however, mean that states are not seeking novel ways to continue the fight against distracted driving and its dire consequences.[79] New York legislators, for example, recently introduced a bill (“Evan’s Law”) that arms police officers with a field testing device called a “textalyzer.”[80] A textalyzer, which is still in development,[81] could check a driver’s phone for recent, unlawful activity.[82]

Setting aside privacy concerns, Evan’s Law and the use of a textalyzer raise additional important, yet unanswered, questions.[83] Among those is whether the device will have the ability to distinguish between a message sent manually and one sent using hands-free technology.[84] Hands-free devices are specifically exempted from New York’s texting ban; using them is not a violation of the law.[85] Some doubt that the textalyzer will be able to differentiate whether a message was sent hands-on or hands-free.[86] This may complicate the solution by adding, rather than subtracting, steps.[87] The National Highway Traffic Safety Administration desires a technological solution to the distracted driving problem.[88] The textalyzer, however, diverges from their vision—one including a device or a vehicle feature that recognizes when a driver is using a phone and deactivates it[89] —and adds procedural requirements.[90]

New York is currently the only state to consider using a device like the textalyzer to combat the distracted driving problem.[91] If Evan’s Law passes, however, other states may join New York’s lead.[92] Using technology to combat technology without explicitly considering the new age of automobile advancements and current research assessing their efficacy may prove to further complicate an already difficult area.

Suggestions and Conclusion

Technological advancements in cars are rapid and largely a result of consumer desires.[93] As car manufacturers and legislators work to find solutions to the distracted driving epidemic,[94] the latter must take a hard look at the adequacy of current measures, while the former should consider its competitive emphasis on integrated hands-free technology. Importantly, researchers and legislators will need to stop talking past one another, and start comparing notes.

[1] New Age Automobiles, Dreams About Car Life of the Future, MURATA, http://www.murata.com/en-us/about/newsroom/techmag/metamorphosis17/special/life (last visited June 7, 2016).

[5] Reuters, U.S. Commuters Spend About 42 Hours a Year Stuck in Traffic Jams, NEWSWEEK (Aug. 26, 2015, 12:31 PM), http://www.newsweek.com/us-commuters-spend-about-42-hours-year-stuck-traffic-jams-365970; see also Ashley Halsey III, Automakers Embrace Hands-Free Text-Messaging Technology, WASH. POST (Oct. 24, 2011), https://www.washingtonpost.com/local/automakers-embrace-hands-free-text-messaging-technology/2011/10/19/gIQAg0fjDM_story.html (“The demand for all this comes, in part, because the amount of time Americans spend stuck in traffic has more than doubled since 1982 . . . .”); The Editorial Board, Editorial, Hands-Free Distractions, N.Y. TIMES (June 23, 2013), http://www.nytimes.com/2013/06/24/opinion/hands-free-distractions.html (“A spokeswoman for the auto industry told The Times that ‘people want to be connected in their car just as they are in their home or wherever they may be.’”).

[6] Reuters, supra note 5.

[7] Built-in Connectivity Among Least Used Technologies, Creating Lost Value, J.D. POWER (Aug. 25, 2015), http://www.jdpower.com/press-releases/2015-driver-interactive-vehicle-experience-drive-report (“[A]ccording to the J.D. Power 2015 Driver Interactive Vehicle Experience (DrIVE) Report,” which “measures driver experiences with in-vehicle technology features during the first 90 days of ownership . . . at least 20 percent of new-vehicle owners have never used 16 of the 33 technology features measured.”).

[8] Paul Murrell, The Technology People Want in Their Cars, and What They Don’t . . ., PRACTICAL MOTORING, https://practicalmotoring.com.au/car-news/what-car-tech-people-want-and-what-they-dont/ (last visited June 7, 2016).

[12] Id. Back-up cameras in cars, for example, are a practical advancement that will be mandated by law in any new car produced or sold in the United States after 2018. Wayne Cunningham, U.S. Requiring Back-Up Cameras in Cars by 2018, ROADSHOW BY CNET (Mar. 31, 2014, 11:04 AM), http://www.cnet.com/roadshow/news/u-s-requiring-back-up-cameras-in-cars-by-2018/ (“The rule applies to all road-legal vehicles under 10,000 pounds” and “requires a back-up camera to show a field of vision at least 10 feet wide directly behind the vehicle, going back a minimum of 20 feet.”).

[20] CTR. FOR INTERNET & TECH. ADDICTION, IT CAN WAIT COMPULSION SURVEY 3, http://about.att.com/content/dam/snrdocs/It%20Can%20Wait%20Compulsion%20Survey%20Key%20Findings_9%207%2014.pdf (last visited June 7, 2016) (using a national telephone survey consisting of 1,004 respondents who meet the following criteria: are between 16-65, own a cell phone, text at least once a day, and drive, at a minimum, almost every day).

[21] Justin Worland, Why People Text and Drive Even When They Know It’s Dangerous, TIME (Nov. 6, 2014), http://time.com/3561413/texting-driving-dangerous/.

[22] CTR. FOR INTERNET & TECH. ADDICTION, supra note 20.

[23] Distracted Driving, CDC, http://www.cdc.gov/motorvehiclesafety/distracted_driving/ (last visited June 7, 2016) (noting that there are three types of distraction: visual, manual, and cognitive).

[39] Of the 10 largest car manufactures in the world, General Motors is #2, Nissan-Renault #3, and Ford Motor Company #6. See John LeBlanc, The Top 10 Largest Automakers in the World, DRIVING (Apr. 25, 2014), http://driving.ca/toyota/corolla/auto-news/news/the-top-10-largest-automakers-in-the-world.

[41] See In-Vehicle Infotainment (IVI), WEBOPEDIA, http://www.webopedia.com/TERM/I/in-vehicle-infotainment-ivi.html (last visited June 7, 2016) (“[T]ypical tasks that can be performed with an in-vehicle infotainment system include managing and playing audio content, utilizing navigation for driving, delivering rear-seat entertainment such as movies, games, social networking, etc., listening to incoming and sending outgoing SMS text messages, making phone calls, and accessing Internet-enabled or smartphone-enabled content such as traffic conditions, sports scores and weather forecasts.”).

[54] David Pogue, Hands-Free Texting Is No Safer to Use While Driving, SCIENTIFIC AMERICAN (Nov. 1, 2013), http://www.scientificamerican.com/article/hands-free-texting-is-no-safer-to-use-while-driving/ (discussing a study conducted by the Texas A&M Transportation Institute that examined “people driving a closed course under three conditions: while texting by hand, while texting by voice . . ., and without texting at all,” and finding that there is “no difference whether [one] text[s] hands-free or by voice”). Notably, this study only used 43 subjects. Id.

[58] Hidden Dangers, supra note 52 (summarizing a study in which 257 drivers between the ages of 21 and 70 tested 2015 model-year vehicles, and 65 other drivers between the ages of 21 and 68 “tested the three phone systems”). The study represented a third phase of the Foundation’s investigation into the effects of hands-free technology use in vehicles on a driver’s cognitive distraction. Id.

[59] The Texas A&M Transportation Institute (TTI) is “one of the premier higher education-affiliated transportation research agencies in the nation,” which “conducts over 600 research projects annually with over 200 sponsors at all levels of government and the private sector.” About TTI, Tex. A&M Transp. Inst., http://tti.tamu.edu/about/ (last visited June 7, 2016). This particular study was sponsored by the Southwest Region University Transportation Center. Voice-to-Text Driver Distraction Study, Tex. A&M Transp. Inst. [hereinafter Distraction Study], https://tti.tamu.edu/enhanced-project/voice-to-text-driver-distraction-study/ (last visited June 7, 2016).

[60] Distraction Study, supra note 59 (summarizing a study in which 43 drivers first drove through a closed course without using any cell phones, then did so “three more times performing a series of texting exercises—once using each of two voice-to-text applications (Siri® for the iPhone and Vlingo® for Android), and once texting manually”).

[65] The Virginia Tech Transportation Institute (VTTI) is “the second largest university-level transportation institute in the U.S. with more than 475 employees.” About VTTI, VA. TECH TRANSP. INST., www.vtti.vt.edu/about/about-vtti.html (last visited June 7, 2016). The institute “has more than $36 million in annual sponsored program research expenditures and is conducting more than 270 active projects.” Id. The study in question was sponsored by the National Highway Traffic Safety Administration. New VTTI Study Results Continue to Highlight the Dangers of Distracted Driving,VA. TECH TRANSP. INST. (May 29, 2013) [hereinafter VTTI Study], http://www.vtti.vt.edu/featured/?p=193.

[66] VTTI Study, supra note 65 (summarizing a study in which cameras and other equipment were used to observe participants in their personal vehicles for a combined total of six million miles driven).

[74] Id. Those states are California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New York, Oregon, Vermont, Washington, and West Virginia. Id. The District of Columbia, Puerto Rico, Guam, and the Virgin Islands also ban hand-held devices while driving. Id.